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EXHIBIT 1.1
JDN REALTY CORPORATION
(a Maryland corporation)
Common Stock, Common Stock Warrants,
Preferred Stock and Debt Securities
UNDERWRITING AGREEMENT
July 30, 1997
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
JDN Realty Corporation, a Maryland corporation (the
"Company"), proposes to issue and sell up to $400 million of its (i) shares of
common stock, $.01 par value per share (the "Common Stock"), (ii) warrants to
purchase shares of Common Stock (the "Warrants"), (iii) shares of preferred
stock, par value $.01 per share (the "Preferred Stock") or (iv) senior or
subordinated debt securities (the "Debt Securities"), or any combination
thereof, from time to time, in or pursuant to one or more offerings on terms to
be determined at the time of sale.
The Preferred Stock will be issued in one or more series and
each series of Preferred Stock may vary, as applicable, as to the title,
specific number of shares, rank, stated value, liquidation preference, dividend
rate or rates (or method of calculation), dividend payment dates, redemption
provisions, sinking fund requirements, conversion provisions (and terms of the
related Underlying Securities (as defined below)) and any other variable terms
as set forth in the applicable articles supplementary (each, the "Articles
Supplementary") relating to such series of Preferred Stock.
The Debt Securities will be issued in one or more series as
senior indebtedness (the "Senior Debt Securities") under an indenture or
subordinated indebtedness (the "Subordinated Debt Securities") under an
indenture, each between the Company and one or
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more trustees (each a "Trustee") to be negotiated by the Company and such
Trustee (the "Indenture"). Each series of Debt Securities may vary, as
applicable, as to title, aggregate principal amount, rank, interest rate or
formula and timing of payments thereof, stated maturity date, redemption and/or
repayment provisions, sinking fund requirements, conversion provisions (and
terms of the related Underlying Securities) and any other variable terms
established by or pursuant to the applicable Indenture.
Each issue of Warrants will be issued pursuant to a separate
warrant agreement (each, a "Warrant Agreement") between the Company and the
warrant agent identified therein (each, a "Warrant Agent"). The Warrants may
vary, as applicable, as to, among other terms, title, type, specific number,
exercise dates or periods, exercise prices(s), expiration date(s) and terms of
the related Underlying Securities.
As used herein, "Securities" shall mean the Common Stock,
Warrants, Preferred Stock, or Debt Securities, or any combination thereof,
initially issuable by the Company and "Underlying Securities" shall mean the
Common Stock, Preferred Stock, or Debt Securities issuable upon conversion of
the Preferred Stock or Debt Securities, as applicable.
Whenever the Company determines to make an offering of
Securities through Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated ("Xxxxxxx Xxxxx"), or through an underwriting syndicate managed by
Xxxxxxx Xxxxx, the Company will enter into an agreement (each, a "Terms
Agreement") providing for the sale of such Securities to, and the purchase and
offering thereof by, Xxxxxxx Xxxxx and such other underwriters, if any, selected
by Xxxxxxx Xxxxx (the "Underwriters," which term shall include Xxxxxxx Xxxxx,
whether acting as sole Underwriter or as a member of an underwriting syndicate,
as well as any Underwriter substituted pursuant to Section 10 hereof). The Terms
Agreement relating to the offering of Securities shall specify the number or
aggregate principal amount, as the case may be, of Securities to be initially
issued (the "Initial Underwritten Securities"), the name of each Underwriter
participating in such offering (subject to substitution as provided in Section
10 hereof) and the name of any Underwriter other xxxx Xxxxxxx Xxxxx acting as
co-manager in connection with such offering, the number or aggregate principal
amount, as the case may be, of Initial Underwritten Securities which each such
Underwriter severally agrees to purchase, whether such offering is on a fixed or
variable price basis and, if on a fixed price basis, the initial offering price,
the price at which the Initial Underwritten Securities are to be purchased by
the Underwriters, the form, time, date and place of delivery and payment of the
Initial Underwritten Securities and any other material variable terms of the
Initial Underwritten Securities, as well as the material variable terms of any
related Underlying Securities. In addition, if applicable, such Terms Agreement
shall specify whether the Company has agreed to grant to the Underwriters an
option to purchase additional Securities to cover over-allotments, if any, and
the number or aggregate principal amount, as the case may be, of Securities
subject to such option (the "Option Underwritten Securities"). As used herein,
the term "Underwritten Securities" shall include the Initial Underwritten
Securities and all or any portion of any Option Underwritten Securities. The
Terms Agreement, which shall be substantially in the form of Exhibit A hereto,
may take the form of an exchange of any standard form of written
telecommunication between the Company and Xxxxxxx Xxxxx, acting for itself and,
if applicable, as representative of any other
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Underwriters. Each offering of Underwritten Securities through Xxxxxxx Xxxxx
as sole Underwriter or through an underwriting syndicate managed by Xxxxxxx
Xxxxx will be governed by this Underwriting Agreement, as supplemented by the
applicable Terms Agreement.
As used herein the term "Properties" refers to the real
properties in which the following entities own an interest: the Company, JDN
Development Company, Inc. ("JDN Development"), Subsidiaries of the Company
(defined below) or JDN Development and joint ventures (including limited
liability companies) in which any of the Company, JDN Development or any of
their Subsidiaries own an interest. As used hereinafter, the term "Subsidiary"
means a corporation or a partnership a majority of the outstanding equity of
which is owned or controlled, directly or indirectly, by the Company or by one
or more other Subsidiaries of the Company.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333-22339) covering, among other Securities, the Underwritten Securities, under
the Securities Act of 1933, as amended (the "1933 Act"), and the offering
thereof from time to time in accordance with Rule 415 of the rules and
regulations of the Commission under the 1933 Act (the "1933 Act Regulations"),
and the Company has filed such post-effective amendments thereto as may be
required prior to the execution of this Underwriting Agreement. Such
registration statement (as so amended, if applicable) has been declared
effective by the Commission. Such registration statement (as so amended, if
applicable), is referred to herein as the "Registration Statement;" and the
prospectus constituting a part of the Registration Statement at the time it was
declared effective by the Commission and the prospectus supplement relating to
the offering of the Underwritten Securities, in the form furnished to the
Underwriters by the Company for use in connection with the offering of the
Underwritten Securities, are collectively referred to herein as the
"Prospectus;" provided, however, that all references to the "Registration
Statement" and the "Prospectus" shall be deemed to include all documents
incorporated therein by reference pursuant to the Securities Exchange Act of
1934, as amended (the "1934 Act"), prior to the execution of this Underwriting
Agreement; provided, further, that if the Company files a registration statement
with the Commission pursuant to Section 462(b) of the 1933 Act Regulations (the
"Rule 462 Registration Statement"), then, after such filing, all references to
"Registration Statement" shall be deemed to include the Rule 462 Registration
Statement. A "preliminary prospectus" shall be deemed to refer to any prospectus
as supplemented that omitted information to be included upon pricing in a form
of prospectus filed with the Commission pursuant to Rule 424(b) of the 1933 Act
Regulations, that was used after such effectiveness and prior to the execution
and delivery of the Terms Agreement. For purposes of this Underwriting
Agreement, all references to the Registration Statement, Prospectus, or
preliminary prospectus or to any amendment or supplement to any of the foregoing
shall be deemed to include the copy filed with the Commission pursuant to its
Electronic Data Gathering, Analysis and Retrieval system ("XXXXX").
All references in this Underwriting Agreement to financial
statements and schedules and other information which is "contained," "included"
or "stated" (or other references of like import) in the Registration Statement,
Prospectus or preliminary prospectus
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shall be deemed to mean and include all such financial statements and schedules
and other information which is incorporated by reference in the Registration
Statement, Prospectus or preliminary prospectus, as the case may be; and all
references in this Underwriting Agreement to amendments or supplements to the
Registration Statement, Prospectus or preliminary prospectus shall be deemed to
mean and include the filing of any document under the 1934 Act which is
incorporated by reference in the Registration Statement, Prospectus or
preliminary prospectus, as the case may be.
SECTION 1. Representations and Warranties
(a) Representations and Warranties by the Company. The Company
represents and warrants to Xxxxxxx Xxxxx, as of the date hereof, and to each
Underwriter named in the applicable Terms Agreement, as of the date thereof, as
of the Closing Time (as defined below), and if applicable, as of each Date of
Delivery (as defined below) (in each case a "Representation Date") as follows:
(1) Compliance with Registration Requirements. The
Company meets the requirements for use of Form S-3 under the 1933 Act.
The Registration Statement has become effective under the 1933 Act and
no stop order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act and no proceedings for
that purpose have been instituted or are pending or, to the knowledge
of the Company, are contemplated by the Commission, and any request on
the part of the Commission for additional information has been complied
with.
At the respective times the Registration Statement and any
post-effective amendments thereto (including the filing of the
Company's most recent Annual Report on Form 10-K with the Commission
(the "Annual Report on Form 10-K")) became effective and at each
Representation Date, the Registration Statement, any Rule 462(b)
Registration Statement and any amendments and supplements thereto
complied and will comply in all material respects with the requirements
of the 1933 Act and the 1933 Act Regulations and the rules and
regulations of the Commission under the 1939 Act (the "1939 Act
Regulations") and did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading. At
the date of the Prospectus, at the Closing Time and at each Date of
Delivery, if any, the Prospectus and any amendments and supplements
thereto did not and will not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading. If the Company elects to rely upon Rule 434
of the 1933 Act Regulations, the Company will comply with the
requirements of Rule 434. Notwithstanding the foregoing, the
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or the
Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by any Underwriter through Xxxxxxx
Xxxxx expressly for use in the Registration Statement or the
Prospectus.
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Each preliminary prospectus and prospectus filed as part of
the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the 1933 Act
Regulations and each preliminary prospectus supplement and the
Prospectus delivered to the Underwriters for use in connection with the
offering of Underwritten Securities will, at the time of such delivery,
be identical to any electronically transmitted copies thereof filed
with the Commission pursuant to XXXXX, except to the extent permitted
or required by Regulation S-T.
(2) Incorporated Documents. The documents
incorporated or deemed to be incorporated by reference in the
Registration Statement and the Prospectus, at the time they were or
hereafter are filed with the Commission, complied and will comply in
all material respects with the requirements of the 1934 Act and the
rules and regulations of the Commission thereunder (the "1934 Act
Regulations") and, when read together with the other information in the
Prospectus, at the date of the Prospectus, at the Closing Time and at
each Date of Delivery, if any, did not and will not include an untrue
statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(3) Independent Accountants. The accountants who
audited the financial statements and supporting schedules
included in the Registration Statement and the Prospectus are
independent public accountants as required by the 1933 Act and the 1933
Act Regulations.
(4) Financial Statements. The financial statements of
the Company included in the Registration Statement and the Prospectus,
together with the related schedules and notes, as well as those
financial statements, schedules and notes of any other entity included
therein, present fairly the financial position of the Company and its
consolidated subsidiaries, or such other entity, as the case may be, at
the dates indicated and the statement of income, statement of
stockholders' equity and cash flows of the Company and its consolidated
subsidiaries, or such other entity, as the case may be, for the periods
specified. Such financial statements have been prepared in conformity
with generally accepted accounting principles ("GAAP") applied on a
consistent basis throughout the periods involved. The supporting
schedules, if any, included in the Registration Statement and the
Prospectus present fairly in accordance with GAAP the information
required to be stated therein. The selected financial data and the
summary financial information included in the Prospectus present fairly
the information shown therein and have been compiled on a basis
consistent with that of the audited financial statements included in
the Registration Statement and the Prospectus. In addition, any pro
forma financial statements of the Company and its subsidiaries and the
related notes thereto included in the Registration Statement and the
Prospectus present fairly the information shown therein, have been
prepared in accordance with the Commission's rules and guidelines with
respect to pro forma financial statements, with the exception of
adjustment (6) in footnote 14 to the Company's financial statements for
the year ending
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and as of December 31, 1994 included in the Company's Form 10-K for the
year ending December 31, 1996, and have been properly compiled on the
bases described therein, and the assumptions used in the preparation
thereof are reasonable and the adjustments used therein are appropriate
to give effect to the transactions and circumstances referred to
therein.
(5) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, except as otherwise stated therein, (A)
there has been no material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business
prospects of the Company and its Subsidiaries considered as one
enterprise (a "Material Adverse Effect"), whether or not arising in the
ordinary course of business, (B) there have been no transactions
entered into by the Company or any of its Subsidiaries, other than
those arising in the ordinary course of business, which are material
with respect to the Company and its Subsidiaries considered as one
enterprise and (C) except for regular dividends on the Company's common
stock or preferred stock, in amounts per share that are consistent with
past practice or the applicable charter document or supplement thereto,
respectively, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital
stock.
(6) Good Standing of the Company. The Company has
been duly organized and is validly existing as a corporation in good
standing under the laws of the State of Maryland and has corporate
power and authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus and to enter into
and perform its obligations under, or as contemplated under, this
Underwriting Agreement and the Terms Agreement. The Company is duly
qualified as a foreign corporation to transact business and is in good
standing in each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure to so qualify or be
in good standing would not result in a Material Adverse Effect.
(7) Good Standing of Subsidiaries. Each Subsidiary
has been duly organized and is validly existing and in good standing
under the laws of the jurisdiction of its organization, has the
requisite power and authority to own, lease and operate its properties
and to conduct its business as described in the Prospectus and is duly
qualified as a foreign corporation, partnership or other organization
to transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except
where the failure to so qualify or be in good standing would not result
in a Material Adverse Effect. Except as otherwise stated in the
Registration Statement and the Prospectus, all of the issued and
outstanding equity securities of each Subsidiary have been duly
authorized and is validly issued, fully paid and non-assessable and is
owned by the Company, directly or through Subsidiaries (except in the
case of JDN Development, the outstanding voting common stock of which
is owned 99% by J. Xxxxxx Xxxxxxx and 1% by the Company, and the
outstanding non-voting common stock of which is owned 100% by the
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Company), free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equity. None of the outstanding equity
securities of any Subsidiary were issued in violation of preemptive or
other similar rights of any securityholder of such Subsidiary.
(8) Capitalization. If the Prospectus contains a
"Capitalization" section, the authorized, issued and outstanding shares
of capital stock of the Company is as set forth under such section
(except for subsequent issuances thereof, if any, contemplated under
this Registration Statement, pursuant to reservations, agreements or
employee benefit plans, stock option or purchase plans or dividend
reinvestment plans referred to in the Prospectus or pursuant to the
exercise of convertible securities or options referred to in the
Prospectus). Such shares of capital stock have been duly authorized and
validly issued by the Company and are fully paid and non-assessable,
and none of such shares of capital stock were issued in violation of
preemptive or other similar rights of any securityholder of the
Company.
(9) Qualification as a REIT. The Company is
organized in conformity with the requirements for qualification as a
real estate investment trust ("REIT") under the Internal Revenue Code
of 1986, as amended (the "Code"), and its method of operation enables
it to meet the requirements for taxation as a REIT under the Code for
its taxable periods beginning or otherwise including the period after
the Closing Date.
(10) Authorization of this Underwriting Agreement
and Terms Agreement. This Underwriting Agreement has been, and
the applicable Terms Agreement as of the date thereof will have
been, duly authorized, executed and delivered by the Company.
(11) Authorization of Common Stock. If the
Underwritten Securities being sold pursuant to the applicable Terms
Agreement include Common Stock, such Underwritten Securities have been,
or as of the date of such Terms Agreement will have been, duly
authorized by the Company for issuance and sale pursuant to this
Underwriting Agreement and such Terms Agreement. Such Underwritten
Securities, when issued and delivered by the Company pursuant to this
Underwriting Agreement and such Terms Agreement against payment of the
consideration therefor specified in such Terms Agreement, will be
validly issued, fully paid and non-assessable and will not be subject
to preemptive or other similar rights of any securityholder of the
Company. No holder of such Underwritten Securities will be subject to
personal liability by reason of being such a holder.
(12) Authorization of Preferred Stock. If the
Underwritten Securities being sold pursuant to the applicable Terms
Agreement include Preferred Stock, such Underwritten Securities have
been, or as of the date of such Terms Agreement will have been, duly
authorized by the Company for issuance and sale pursuant to this
Underwriting Agreement and
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such Terms Agreement. The applicable Preferred Stock, when issued and
delivered by the Company pursuant to this Underwriting Agreement and
such Terms Agreement against payment of the consideration therefor,
will be validly issued, fully paid and non-assessable and will not be
subject to preemptive or other similar rights of any securityholder of
the Company. No holder of Preferred Stock will be subject to personal
liability by reason of being such a holder. The applicable Articles
Supplementary for such Preferred Stock will be in full force and effect
prior to the Closing Time.
(13) Authorization of Senior Debt Securities and/or
Subordinated Debt Securities. If the Underwritten Securities being sold
pursuant to the applicable Terms Agreement include Senior Debt
Securities and/or Subordinated Debt Securities, such Underwritten
Securities have been, or as of the date of such Terms Agreement will
have been, duly authorized by the Company for issuance and sale
pursuant to this Underwriting Agreement and such Terms Agreement. Such
Underwritten Securities, when issued and authenticated in the manner
provided for in the applicable Indenture and delivered against payment
of the consideration therefor specified in such Terms Agreement, will
constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms, except
as the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
affecting rights of creditors generally or by general equitable
principles, and except further as enforcement thereof may be limited by
(A) requirements that a claim with respect to any Debt Securities
denominated other than in U.S. dollars (or a foreign or composite
currency judgment in respect of such claim) be converted into U.S.
dollars at a rate of exchange prevailing on a date determined pursuant
to applicable law or (B) governmental authority to limit, delay or
prohibit the making of payments outside the United States. Such
Underwritten Securities will be in the form contemplated by, and each
registered holder thereof is entitled to the benefits of, the
applicable Indenture.
(14) Authorization of the Indentures. If the
Underwritten Securities being sold pursuant to the applicable Terms
Agreement include Senior Debt Securities and/or Subordinated Debt
Securities, or if Preferred Stock is convertible into Debt Securities,
each applicable Indenture has been duly authorized, executed and
delivered by the Company and, upon such authorization, execution and
delivery, will constitute a valid and legally binding agreement of the
Company, enforceable against the Company in accordance with its terms,
except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating
to or affecting rights of creditors generally or by general equitable
principles.
(15) Authorization of Warrants. If the Underwritten
Securities being sold pursuant to the applicable Terms Agreement
include Warrants, such Underwritten Securities have been, or as of the
date of such Terms Agreement will have been, duly authorized by the
Company for issuance and sale pursuant to this Underwriting Agreement
and such Terms Agreement. Such Underwritten Securities, when issued and
authenticated in the manner provided for the applicable Warrant
Agreement and delivered against payment of the consideration therefor
specified in such Terms Agreement, will
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constitute valid and legally binding obligations of the Company,
entitled to the benefits provided by such Warrant Agreement and
enforceable against the Company in accordance with their terms, except
as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally or by general equitable
principles.
(16) Authorization of Warrant Agreement. If the
Underwritten Securities being sold pursuant to the applicable Terms
Agreement include Warrants, each applicable Warrant Agreement has been,
or prior to the issuance of such Underwritten Securities will have
been, duly authorized, executed and delivered by the Company and, upon
such authorization, execution and delivery, will constitute a valid and
legally binding agreement of the Company, enforceable against the
Company in accordance with its terms, except as enforcement thereof may
be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to or affecting creditors' rights generally
or by general equitable principles.
(17) Authorization of Underlying Securities. If the
Underlying Securities related to the Underwritten Securities being sold
pursuant to the applicable Terms Agreement include Common Stock or
Preferred Stock, such Underlying Securities have been, or as of the
date of such Terms Agreement will have been, duly authorized and
reserved for issuance by the Company upon exercise of the Warrants, or
upon conversions of the related Preferred Stock, Senior Debt Securities
or Subordinated Debt Securities, as applicable. If the Underlying
Securities include Common Stock or Preferred Stock, such Underlying
Securities, when issued upon such exercise or conversion, as
applicable, will be validly issued, fully paid and non-assessable and
will not be subject to preemptive or other similar rights arising by
operation of law, under the charter and by-laws of the Company or under
any agreement to which the Company or any of its subsidiaries is a
party, or otherwise. No holder of such Common Stock or Preferred Stock
will be subject to personal liability by reason of being such a holder.
If the Underlying Securities related to the Underwritten Securities
being sold pursuant to the applicable Terms Agreement include Senior
Debt Securities and/or Subordinated Debt Securities, such Underlying
Securities have been, or as of the date of such Terms Agreement will
have been, duly authorized for issuance by the Company upon conversion
of the related Preferred Stock. Such Underlying Securities, when issued
and authenticated in the manner provided for in the applicable
Indenture and delivered in accordance with the terms of the related
Preferred Stock, will constitute valid and legally binding obligations
of the Company, enforceable against the Company in accordance with its
terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating
to or affecting creditors' rights generally or by general equitable
principles, and except further as enforcement therefor may be limited
by (A) requirements that a claim with respect to any Debt Securities
denominated other than in U.S. dollars (or a foreign or composite
currency judgment in respect of such claim) be converted into U.S.
dollars at a rate of exchange prevailing on a date determined pursuant
to applicable law or (B) governmental authority to limit, delay or
prohibit the making of payments outside the United States.
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(18) Descriptions of the Underwritten Securities,
Underlying Securities, Indentures and Warrant Agreement. The
Underwritten Securities being sold pursuant to the applicable Terms
Agreement and each applicable Indenture and Warrant Agreement, as of
the date of the Prospectus, and any Underlying Securities, when issued
and delivered in accordance with the terms of the related Underwritten
Securities, will conform in all material respects to the statements
relating thereto contained in the Prospectus and will be in
substantially the form filed or incorporated by reference, as the case
may be, as an exhibit to the Registration Statement.
(19) Absence of Defaults and Conflicts. Neither the
Company nor any of its Subsidiaries is in violation of its charter or
by-laws or other organizational documents or in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease or other agreement or
instrument to which the Company or any of its Subsidiaries is a party
or by which or any of them may be bound, or to which any of the
property or assets of the Company or any subsidiary is subject
(collectively, "Agreements and Instruments") except for such defaults
that would not result in a Material Adverse Effect. The execution,
delivery and performance of this Underwriting Agreement, the applicable
Terms Agreement, and each applicable Indenture, Warrant Agreement and
any other agreement or instrument entered into or issued or to be
entered into or issued by the Company in connection with the
transactions contemplated hereby or thereby or in the Registration
Statement and the Prospectus and the consummation of the transactions
contemplated herein and in the Registration Statement and the
Prospectus (including the issuance and sale of the Underwritten
Securities and the use of the proceeds from the sale of the
Underwritten Securities as described under the caption "Use of
Proceeds") and compliance by the Company with its obligations hereunder
and thereunder have been duly authorized by all necessary corporate
action and do not and will not, whether with or without the giving of
notice or passage of time or both, conflict with or constitute a breach
of, or default or Repayment Event (as defined below) under, or result
in the creation or imposition of any lien, charge or encumbrance upon
any assets, properties or operations of the Company or any Subsidiary
pursuant to any Agreements and Instruments except for such conflicts,
breaches, defaults, events or liens, charges or encumbrances that would
not result in a Material Adverse Effect, nor will such action result in
any violation of the provisions of the charter or by-laws of the
Company or any of its Subsidiaries, nor will such action result in any
violation of applicable law, statute, rule, regulation, judgment,
order, writ or decree of any government, government instrumentality or
court, domestic or foreign, having jurisdiction over the Company or any
of its Subsidiaries or any of their assets, properties or operations
except for such violations that would not result in a Material Adverse
Effect. As used herein, a "Repayment Event" means any event or
condition which gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such holder's behalf)
the right to require the repurchase, redemption or repayment of all or
a portion of such indebtedness by the Company or any Subsidiary.
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(20) Absence of Labor Dispute. No labor dispute with
the employees of the Company or any Subsidiary exists or, to the
knowledge of the Company, is imminent, and the Company is not aware of
any existing or imminent labor disturbance by the employees of any of
its or any Subsidiary's principal customers or contractors, which, in
either case, may reasonably be expected to result in a Material Adverse
Effect.
(21) Absence of Proceedings. There is not pending or
threatened any action, suit, proceeding, inquiry or investigation
before or brought by any court or governmental agency or body, domestic
or foreign, now pending, or to the knowledge of the Company threatened,
against or affecting the Company or any Subsidiary thereof which is
required to be disclosed in the Registration Statement and the
Prospectus (other than as stated therein), or which might reasonably be
expected to result in a Material Adverse Effect, or which might
reasonably be expected to materially and adversely affect the
consummation of the transactions contemplated under this Underwriting
Agreement, or the performance by the Company of its obligations
hereunder and thereunder. The aggregate of all pending legal or
governmental proceedings to which the Company or any Subsidiary thereof
is a party or of which any of their respective assets, properties or
operations is the subject which are not described in the Registration
Statement and the Prospectus or a document incorporated by reference
therein, including ordinary routine litigation incidental to the
business, could not reasonably be expected to result in a Material
Adverse Effect.
(22) Accuracy of Exhibits. There are no contracts or
documents which are required to be described in the Registration
Statement, the Prospectus or the documents incorporated by reference
therein or to be filed as exhibits thereto which have not been so
described and/or filed as required.
(23) Absence of Further Requirements. No filing with,
or authorization, approval, consent, license, order registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Company of
its obligations under this Underwriting Agreement or the applicable
Terms Agreement or in connection with the transactions contemplated
under this Underwriting Agreement, such Terms Agreement or any
applicable Indenture or Warrant Agreement, except for the registration
of the Underwritten Securities under the 1933 Act, compliance with the
listing requirements of the New York Stock Exchange (if applicable) or
under state securities laws, all of which have been or will be effected
in accordance with this Agreement.
(24) Possession of Intellectual Property. The Company
and its Subsidiaries own or possess all adequate trademarks, service
marks, trade names or other intellectual property (collectively,
"Intellectual Property") necessary to carry on the business now
operated by them, and neither the Company nor any of its Subsidiaries
has received any notice or is otherwise aware of any infringement of or
conflict with asserted rights of others with respect to any
Intellectual Property or of any facts or circumstances which would
render any Intellectual Property invalid or inadequate to protect the
interest
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of the Company or any of its Subsidiaries therein, and which
infringement or conflict (if the subject of any unfavorable decision,
ruling or finding) or invalidity or inadequacy, singly or in the
aggregate, would result in a Material Adverse Effect.
(25) Possession of Licenses and Permits. The Company
and its Subsidiaries possess such permits, licenses, approvals,
consents and other authorizations (collectively, "Governmental
Licenses") issued by the appropriate federal, state, local or foreign
regulatory agencies or bodies necessary to conduct the business now
operated by them. The Company and its Subsidiaries are in compliance
with the terms and conditions of all such Governmental Licenses, except
where the failure so to comply would not, singly or in the aggregate,
result in a Material Adverse Effect. All of the Governmental Licenses
are valid and in full force and effect, except where the invalidity of
such Governmental Licenses or the failure of such Governmental Licenses
to be in full force and effect would not result in a Material Adverse
Effect. Neither the Company nor any of its Subsidiaries has received
any notice of proceedings relating to the revocation or modification of
any such Governmental Licenses which, singly or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would result
in a Material Adverse Effect.
(26) Title to Property. The Company and its
Subsidiaries have good and marketable title to all of the properties
and assets reflected in the financial statements (or as described in or
incorporated by reference into the Registration Statement or
Prospectus), in each case, free and clear of all mortgages, pledges,
liens, security interests, claims, restrictions or encumbrances of any
kind except (A) as otherwise stated in the Registration Statement and
the Prospectus or (B) those which do not, singly or in the aggregate,
materially affect the value of such property and do not interfere with
the use made and proposed to be made of such property by the Company or
any of its subsidiaries. Except as stated in the Registration Statement
and the Prospectus and with respect to (i) American Hospitality
Corporation as tenant under the Ground Lease Agreement, dated April
1986, between Taco Xxxx Corp. and Cherokee Investors, Ltd., as assigned
and amended from time to time (the "Taco Xxxx Lease") which has the
right under the Taco Xxxx Lease to purchase the property that is
demised by the Taco Xxxx Lease (the "Demised Premises") within the
Property known as the Tullahoma Shopping Center for the "mutually
agreeable price" if the Demised Premises are "purchased by the
landlord," (ii) the option to purchase the membership interest of JDN
Development Company's Subsidiary under the Operating Agreement for
Dogwood Drive LLC, (iii) the option to purchase the membership interest
of JDN Development Company under the Operating Agreement for Xxxxx
Xxxxxxx Development Company, LLC, and (iv) other Properties that,
singly or in the aggregate, are not material to the business of the
Company and its Subsidiaries considered as one enterprise, no person
has an option or right of first refusal to purchase all or part of any
Property or any interest therein. All of the leases and subleases
material to the business of the Company and its Subsidiaries considered
as one enterprise, and under which the Company or any Subsidiary holds
Properties described in the Prospectus, are in full force and effect,
and neither the Company nor any of its Subsidiaries has received any
notice of any material claim of any
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sort that has been asserted by anyone adverse to the rights of the
Company or any of its Subsidiaries under any of the leases or subleases
mentioned above, or affecting or questioning the rights of the Company
or such Subsidiary of the continued possession of the leased or
subleased premises under any such lease or sublease.
(27) Leases. Each lease of real property by the
Company as lessor is the legal, valid and binding obligation of the
lessee in accordance with the terms of such lease (except for such
leases as are not material to the business of the Company and except
that the remedy of specific performance and injunctive and other forms
of equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be
brought and to the Federal Bankruptcy Code). The rents with respect to
the Properties which at present are or remain due and unpaid for more
than 30 days are not payable under leases such that, were no further
rental payments to be received by the Company under such leases, there
would result a Material Adverse Effect. The Company has no reason to
believe that any tenant which is responsible for aggregate annual
rental payments in excess of $500,000 under all of its leases at the
Properties is not financially capable of performing its obligations
thereunder or intends to terminate any of its leases prior to
expiration thereof. The Company occupies its leased properties under
valid and binding leases conforming in all material respects to any
description thereof set forth in or incorporated by reference into the
Registration Statement or Prospectus.
(28) Commodity Exchange Act. If the Underwritten
Securities being sold pursuant to the applicable Terms Agreement
include Debt Securities or if any related Underlying Securities include
Debt Securities, as the case may be, such Debt Securities, upon
issuance, will be excluded or exempted under, or beyond the purview of,
the Commodity Exchange Act, as amended (the "Commodity Exchange Act"),
and the rules and regulations of the Commodity Futures Trading
Commission under the Commodity Exchange Act (the "Commodity Exchange
Act Regulations").
(29) Investment Company Act. The Company is not, and
upon the issuance and sale of the Underwritten Securities as herein
contemplated and the application of the net proceeds therefrom as
described in the Prospectus will not be, an "investment company" within
the meaning of the Investment Company Act of 1940, as amended (the
"1940 Act").
(30) Environmental Laws. Except as disclosed in or
incorporated by reference in the Prospectus, the Company has no
knowledge that any Property has ever been used for the disposal,
release, handling, treatment, or storage of any Hazardous Material in
any quantity or form that would reasonably necessitate any responses or
corrective action, including any such action under any Hazardous
Material Law; the Company has no knowledge that any Property has ever
been used, and neither the Company (including its predecessor, JDN
Enterprises, Inc. ("Enterprises")) nor any owner of a Property in which
J. Xxxxxx Xxxxxxx had or has a direct or indirect interest ("JDN
Property") has used any JDN Property, in any manner other than in full
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compliance with all Hazardous Material Laws; none of the Company
(including Enterprises), the owner of any JDN Property or, to the
Company's knowledge, any owner of any other Property has ever received
written or oral notice or other communication of pending or threatened
claims, actions, suits, proceedings or investigations related to any
Property regarding (i) the disposal or release of solid, liquid or
gaseous waste into the environment, (ii) the treatment, storage,
disposal, release or other handling of any Hazardous Material, (iii)
the placement of structures or materials into waters of the United
States, (iv) the presence of any Hazardous Material in any building or
structure located on any Property, (v) the presence of any Hazardous
Material related to the ownership, use, condition, or operation of any
Property, or (vi) any alleged violation of any Hazardous Material Law;
other than knowledge of (1) a remediation agreement (relating to a
leaking underground storage tank) entered into between the State of
Georgia and the owner of the Stop `n' Go site adjacent to the QuikTrip
parcel located at the Company's Lawrenceville Property, (2) a
remediation agreement (relating to soil and groundwater contamination)
entered into between the state of North Carolina and the owner of a
tract adjoining the Company's Greenville, North Carolina Property, (3)
a limited Phase II environmental assessment recommendation that
impacted soils be remediated at the Greensboro, North Carolina
Property, and (4) a corrective action plan required by the State of
Georgia (relating to a release from underground storage tanks) of the
owner of the SAV-A-TON Gasoline Station site near the Company's Ft.
Oglethorpe, Georgia property, the Company has no knowledge that any
soil or water in or adjacent to any Property is contaminated by any
Hazardous Material; to the Company's knowledge, there are no
underground tanks or any other underground storage facilities located
on any Property, and to the Company's knowledge, except as disclosed in
or incorporated by reference into the Prospectus, there have never been
such tanks or facilities on any Property.
Except as disclosed in or incorporated by reference into the
Prospectus, the Company has no knowledge that any real property
previously owned by the Company (including Enterprises) or by any owner
of the JDN Properties (collectively, the "Previously Owned Properties")
has ever been used for the disposal, release, handling, treatment or
storage of any Hazardous Material in any quantity or form that would
reasonably necessitate any responses or corrective action, including
any such action under any Hazardous Material Law; the Company has no
knowledge that any Previously Owned Property has ever been used and
neither the Company (including Enterprises) nor any owner of a JDN
Property has used any Previously Owned Property in any manner other
than in full compliance with all Hazardous Material Laws; neither the
Company (including Enterprises) nor the owner of any Previously Owned
Property has ever received written notice or oral notice or other
communication of pending or threatened claims, actions, suits,
proceedings or investigations relating to any Previously Owned Property
regarding (i) the disposal or release of solid, liquid or gaseous waste
into the environment, (ii) the treatment, storage, disposal, release or
other handling of any Hazardous Material, (iii) the placement of
structures or materials into water of the United States, (iv) the
presence of any Hazardous Material in any building or structure located
on any Previously Owned Property, (v) the presence of any Hazardous
Material related to
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the ownership, use, condition or operation of any Previously Owned
Property or (vi) any alleged violation of any Hazardous Material Law;
to the Company's knowledge, there were no underground tanks or any
other underground storage facilities located on any Previously Owned
Property during the time period prior to and including the period that
any Previously Owned Property was owned by the Company (or Enterprises)
or any owner of a JDN Property.
As used herein, "Hazardous Material" shall include, without
limitation, any substance which is controlled, regulated or prohibited
under any Hazardous Material Law. "Hazardous Material Law" shall mean
any local, state and federal law relating to the environment and
environmental conditions, including, without limitation, the Resource
Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S.C. ss. 6901 et
seq., the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 ("CERCLA"), 42 U.S.C. xx.xx. 9601-9637, as
amended by the Superfund Amendments and Reauthorization Act of 1986
("XXXX"), the Hazardous Materials Transportation Act, 49 U.S.C. ss.
6901, et seq., the Federal Water Pollution Control Act, 33 U.S.C.
xx.xx. 1251 et seq., the Clean Air Act, 42 U.S.C. xx.xx. 741, et seq.,
the Clean Water Act, 33 U.S.C. ss. 7401, et seq., the Toxic Substances
Control Act, 15 U.S.C. xx.xx. 2601-2629, and the Safe Drinking Water
Act, 42 U.S.C. xx.xx. 300f-300j.
(32) Tax Compliance. The Company has filed all
federal, state, local and foreign income tax returns which have been
required to be filed (except in any case in which the failure to so
file would not have a Material Adverse Effect), and has paid all taxes
required to be paid for any other assessment, fine or penalty levied
against it, to the extent that any of the foregoing is due and payable,
except, in all cases, for any such tax, assessment, fine or penalty
that is being contested in good faith. All past due taxes with respect
to the Properties have been paid, and the Company and the Subsidiaries
have no liability, and no tax lien or other charge exists with respect
to any Property that would have a Material Adverse Effect on the
business of the Company. All material tax liabilities have been
adequately provided for in the financial statements of the Company.
(b) Officers' Certificates. Any certificate signed by any officer of
the Company or any Subsidiary and delivered to any Underwriter or to counsel for
the Underwriters in connection with the offering of the Underwritten Securities
shall be deemed a representation and warranty by the Company to each Underwriter
as to the matters covered thereby on the date of such certificate and, unless
subsequently amended or supplemented, at each Representation Date subsequent
thereto.
SECTION 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING
(a) Underwritten Securities. The several commitments of the
Underwriters to purchase the Underwritten Securities pursuant to the applicable
Terms Agreement shall be deemed to have been made on the basis of the
representations and warranties herein contained and shall be subject to the
terms and conditions herein set forth.
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(b) Option Underwritten Securities. In addition, subject to the terms
and conditions herein set forth, the Company may grant, if so provided in the
applicable Terms Agreement, an option to the Underwriters, severally and not
jointly, to purchase up to the number or aggregate principal amount, as the case
may be, of the Option Underwritten Securities set forth therein at a price per
Option Underwritten Security equal to the price per Initial Underwritten
Security, less an amount equal to any dividends or distributions declared by the
Company and paid or payable on the Initial Underwritten Securities but not
payable on the Option Underwritten Securities. Such option, if granted, will
expire 30 days after the time of such Terms Agreement, and may be exercised in
whole or in part from time to time only for the purpose of covering
over-allotments which may be made in connection with the offering and
distribution of the Initial Underwritten Securities upon written notice by
Xxxxxxx Xxxxx to the Company setting forth the number or aggregate principal
amount, as the case may be, of Option Underwritten Securities as to which the
several Underwriters are then exercising the option and the time, date and place
of payment and delivery for such Option Underwritten Securities. Any such time
and date of payment and delivery (each, a "Date of Delivery") shall be
determined by Xxxxxxx Xxxxx, but shall not be later than seven full business
days after the exercise of said option, nor in any event prior to the Closing
Time, unless otherwise agreed upon by Xxxxxxx Xxxxx and the Company. If the
option is exercised as to all or any portion of the Option Underwritten
Securities, each of the Underwriters, severally and not jointly, will purchase
that proportion of the total number or aggregate principal amount, as the case
may be, of Option Underwritten Securities then being purchased which the number
or aggregate principal amount, as the case may be, of Initial Underwritten
Securities each such Underwriter has severally agreed to purchase as set forth
in such Terms Agreement bears to the total number of Initial Underwritten
Securities, subject to such adjustments as Xxxxxxx Xxxxx in its discretion shall
make to eliminate any sales or purchases of a fractional number or aggregate
principal amount, as the case may be, of Option Underwritten Securities.
(c) Payment. Payment of the purchase price for, and delivery of the
Initial Underwritten Securities to be purchased by the Underwriters shall be
made at the offices of Xxxxx & Xxxxxxx L.L.P., 000 Xxxxxxxxxx Xxxxxx, X.X.,
Xxxxxxxxxx X.X. 00000, or at such other place as shall be agreed upon by Xxxxxxx
Xxxxx and the Company, at 10:00 A.M. (Eastern time) on the third (fourth, if the
pricing occurs after 4:30 P.M. (Eastern time) on any given day) business day
after the date hereof (unless postponed in accordance with the provisions of
Section 10 hereof), or such other time not later than ten business days after
such date as shall be agreed upon by Xxxxxxx Xxxxx and the Company (each such
time and date of payment and delivery being herein called "Closing Time"). In
addition, in the event that the Underwriters have exercised their option, if
any, to purchase any or all of the Option Underwritten Securities, payment of
the purchase price for, and delivery of such Option Underwritten Securities,
shall be made at the above-mentioned offices of Xxxxx & Xxxxxxx L.L.P., or at
such other place as shall be agreed upon by Xxxxxxx Xxxxx and the Company, on
the relevant Date of Delivery as specified in the notice from Xxxxxxx Xxxxx to
the Company.
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company against delivery to
Xxxxxxx Xxxxx for the respective accounts of the Underwriters of the
Underwritten Securities to be purchased by them. It is understood that each
Underwriter has authorized Xxxxxxx Xxxxx, for its account, to accept
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delivery of, receipt for, and make payment of the purchase price for, the
Underwritten Securities which it has severally agreed to purchase. Xxxxxxx
Xxxxx, individually and not as representative of the Underwriters, may (but
shall not be obligated to) make payment of the purchase price for the
Underwritten Securities to be purchased by any Underwriter whose check has not
been received by the applicable Closing Time or the relevant Date of Delivery,
as the case may be, but such payment shall not relieve such Underwriter from its
obligations hereunder.
(d) Denominations; Registration. The Underwritten Securities or
certificates for the Underwritten Securities, as applicable, shall be in such
authorized denominations and registered in such names as Xxxxxxx Xxxxx may
request in writing at least two full business days prior to the applicable
Closing Time or the relevant Date of Delivery, as the case may be. The
Underwritten Securities or certificates for the Underwritten Securities, as
applicable, will be made available for examination and packaging by Xxxxxxx
Xxxxx in The City of New York not later than 10:00 A.M. (Eastern time) on the
business day prior to the applicable Closing Time or the relevant Date of
Delivery, as the case may be.
SECTION 3. COVENANTS OF THE COMPANY
The Company covenants with each Underwriter participating in the
offering of Underwritten Securities, as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Company, subject to Section 3(b), will comply with the requirements of Rule 430A
of the 1933 Act Regulations and/or Rule 434 of the 1933 Act Regulations, if and
as applicable, and will notify Xxxxxxx Xxxxx, as representative of the
Underwriters, immediately, and confirm the notice in writing, of (i) the
effectiveness of any post-effective amendment to the Registration Statement or
the filing of any supplement or amendment to the Prospectus, (ii) the receipt of
any comments from the Commission, (iii) any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to the
Prospectus or for additional information, and (iv) the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of any preliminary
prospectus, or of the suspension of the qualification of the Underwritten
Securities for offering or sale in any jurisdiction, or of the initiation or
threatening of any proceedings for any of such purposes. The Company will
promptly effect the filings necessary pursuant to Rule 424 and will take such
steps as it deems necessary to ascertain promptly whether the prospectus
transmitted for filing under Rule 424 was received for filing by the Commission
and, in the event that it was not, it will promptly file the Prospectus. The
Company will make every reasonable effort to prevent the issuance of any stop
order and, if any stop order is issued, to obtain the lifting thereof at the
earliest possible moment.
(b) Filing of Amendments. At any time when the Prospectus is required
to be delivered under the 1933 Act or the 1934 Act in connection with the sales
of the Underwritten Securities, the Company will give Xxxxxxx Xxxxx, as
representative of the Underwriters, notice of its intention to file or prepare
any amendment to the Registration Statement (including any filing under Rule
462(b) of the 1933 Act Regulations), any Term Sheet or any amendment, supplement
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or revision to either the prospectus included in the Registration Statement at
the time it became effective or to the Prospectus, whether pursuant to the 1933
Act, the 1934 Act or otherwise, will xxxxxxx Xxxxxxx Xxxxx, as representative of
the Underwriters, with copies of any such documents a reasonable amount of time
prior to such proposed filing or use, as the case may be, and will not file or
use any such document to which Xxxxxxx Xxxxx, as representative of the
Underwriters, or counsel for the Underwriters shall object.
(c) Delivery of Registration Statements. The Company has furnished or
will deliver to Xxxxxxx Xxxxx, as representative of the Underwriters, and
counsel for the Underwriters, without charge, signed copies of the Registration
Statement as originally filed and of each amendment thereto (including exhibits
filed therewith or incorporated by reference therein and documents incorporated
or deemed to be incorporated by reference therein) and signed copies of all
consents and certificates of experts, and will also deliver to Xxxxxxx Xxxxx,
without charge, a conformed copy of the Registration Statement as originally
filed and of each amendment thereto (without exhibits) for each of the
Underwriters. The copies of the Registration Statement and each amendment
thereto furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX, except
to the extent permitted or required by Regulation S-T.
(d) Delivery of Prospectuses. The Company will deliver to each
Underwriter, without charge, as many copies of each preliminary prospectus as
such Underwriter may reasonably request, and the Company hereby consents to the
use of such copies for purposes permitted by the 1933 Act. The Company will
furnish to each Underwriter, without charge, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such
number of copies of the Prospectus as such Underwriter may reasonably request.
If applicable, the Prospectus and any amendments or supplements thereto
furnished to the Underwriters will be identical to any electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX, except
to the extent permitted or required by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will comply
with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act
Regulations so as to permit the completion of the distribution of the
Underwritten Securities as contemplated in this Underwriting Agreement and the
applicable Terms Agreement and in the Registration Statement and the Prospectus.
If at any time when the Prospectus is required by the 1933 Act or the 1934 Act
to be delivered in connection with sales of the Underwritten Securities, any
event shall occur or condition shall exist as a result of which it is necessary,
in the opinion of counsel for the Underwriters or for the Company, to amend the
Registration Statement in order that the Registration Statement will not contain
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
or to amend or supplement the Prospectus in order that the Prospectus will not
include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in the light of
the circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the opinion of either of such counsel, at any such time
to amend the Registration Statement or amend or supplement the Prospectus in
order to comply with the requirements of the 1933 Act or the 1933 Act
Regulations, the
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Company will promptly prepare and file with the Commission, subject to Section
3(b), such amendment or supplement as may be necessary to correct such statement
or omission or to make the Registration Statement or the Prospectus comply with
such requirements, and the Company will furnish to the Underwriters, without
charge, such number of copies of such amendment or supplement as the
Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company will use its best efforts, in
cooperation with the Underwriters, to qualify the Underwritten Securities and
any related Underlying Securities for offering and sale under the applicable
securities laws of such states and other jurisdictions (domestic or foreign) as
the Underwriters may designate and to maintain such qualifications in effect for
a period of not less than one year from the date of the applicable Terms
Agreement; provided, however, that the Company shall not be obligated to file
any general consent to service of process or to qualify as a foreign corporation
or as a dealer in securities in any jurisdiction in which it is not so qualified
or to subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject. In each jurisdiction in
which the Underwritten Securities have been so qualified, the Company will file
such statements and reports as may be required by the laws of such jurisdiction
to continue such qualification in effect for a period of not less than one year
from the date of the applicable Terms Agreement.
(g) Earning Statement. The Company will timely file such reports
pursuant to the 1934 Act as are necessary in order to make generally available
to its securityholders as soon as practicable an earning statement for the
purposes of, and to provide the benefits contemplated by, the last paragraph of
Section 11(a) of the 1933 Act.
(h) Reservation of Securities. If the applicable Terms Agreement
specifies that any related Underlying Securities include Common Stock and/or
Preferred Stock, the Company will reserve and keep available at all times, free
of preemptive or other similar rights, a sufficient number of shares of Common
Stock and/or Preferred Stock, as applicable, for the purpose of enabling the
Company to satisfy any obligations to issue such Underlying Securities upon
exercise of the related Warrants, as applicable, or upon conversion of the
Preferred Stock, Senior Debt Securities or Subordinated Debt Securities, as
applicable.
(i) Use of Proceeds. The Company will use the net proceeds
received by it from the sale of the Underwritten Securities in the manner
specified in the Prospectus under "Use of Proceeds."
(j) Listing. If so stated in the applicable Prospectus Supplement, the
Company will use its best efforts to have the Underwritten Securities and any
related Underlying Securities approved for listing upon official notice of
issuance on the New York Stock Exchange as of the applicable Closing Time. The
Company will use its best efforts to maintain the listing of any such
Underwritten Securities and related Underlying Securities on the New York Stock
Exchange.
(k) Restriction on Sale of Securities. Between the date of the
applicable Terms Agreement and the applicable Closing Time or such other date
specified in such Terms
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Agreement, the Company will not, without the prior written consent of Xxxxxxx
Xxxxx, directly or indirectly, issue, sell, offer to sell, grant any option for
the sale of, or otherwise dispose of the securities specified in such Terms
Agreement, except as provided in the applicable Terms Agreement.
(l) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will
file all documents required to be filed with the Commission pursuant to the 1934
Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
SECTION 4. PAYMENT OF EXPENSES
(a) Expenses. The Company will pay all expenses incident to the
performance of its obligations under this Underwriting Agreement or the
applicable Terms Agreement, including (i) the preparation, printing and filing
of the Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto, (ii) the preparation, printing
and delivery to the Underwriters of this Underwriting Agreement, any Terms
Agreement, any Agreement among Underwriters, the Indentures, any Warrant
Agreement and such other documents as may be required in connection with the
offering, purchase, sale and delivery of the Underwritten Securities, (iii) the
preparation, issuance and delivery of any certificates for the Underwritten
Securities, as applicable, to the Underwriters, (iv) the fees and disbursements
of the Company's counsel, accountants and other advisors or agents (including
transfer agents and registrars), as well as the fees and disbursements of the
Trustees and any Warrant Agent and their respective counsel, (v) the
qualification of the Underwritten Securities and any related Underlying
Securities under state securities laws in accordance with the provisions of
Section 3(f) hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation, printing and delivery of the Blue Sky Survey,
and any amendment thereto, (vi) the printing and delivery to the Underwriters of
copies of each preliminary prospectus, any Term Sheet, and the Prospectus and
any amendments or supplements thereto, (viii) the fees and expenses incurred
with respect to the listing of the Underwritten Securities and any Underlying
Securities, if applicable and (ix) the filing fees incident to, and the
reasonable fees and disbursements of counsel to the Underwriters in connection
with, the review, if any, by the National Association of Securities Dealers,
Inc. (the "NASD") of the terms of the sale of the Underwritten Securities and
any related Underlying Securities.
(b) Termination of Agreement. If the applicable Terms Agreement is
terminated by Xxxxxxx Xxxxx in accordance with the provisions of Section 5 or
Section 9(a)(i) hereof, the Company shall reimburse the Underwriters for all of
their out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
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SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS
The obligations of the Underwriters to purchase and pay for the
Underwritten Securities pursuant to the applicable Terms Agreement are
subject to the accuracy of the representations and warranties of the Company
contained in Section 1 hereof or in certificates of any officer of the Company
or any of its subsidiaries delivered pursuant to the provisions hereof, to the
performance by the Company of its covenants and other obligations hereunder, and
to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective under the 1933 Act and no stop order suspending the effectiveness of
the Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission, and any request
on the part of the Commission for additional information shall have been
complied with to the reasonable satisfaction of counsel to the Underwriters. A
prospectus containing information relating to the description of the
Underwritten Securities and any related Underlying Securities, the specific
method of distribution and similar matters shall have been filed with the
Commission in accordance with Rule 424(b)(1), (2), (3), (4) or (5), as
applicable (or any required post-effective amendment providing such information
shall have been filed and declared effective in accordance with the requirements
of Rule 430A) or, if the Company has elected to rely upon Rule 434 of the 1933
Act Regulations, a Term Sheet including the Rule 434 information shall have been
filed with the Commission in accordance with Rule 424(b)(7).
(b) Opinion of Counsel for Company. At each Closing Time, the
Underwriters shall have received the favorable opinions, dated as of the
applicable Closing Time, of Xxxxxx Xxxxxxx Xxxxxx & Xxxxx, A Professional
Limited Liability Company, Xxxxx & Wood, LLP and Glass, XxXxxxxxxx, Xxxxxxxx &
Xxxxxxx, LLP, counsel for the Company, in form and substance satisfactory to
counsel for the Underwriters, to the effect set forth in Exhibit B hereto and to
such further effect as counsel to the Underwriters may reasonably request. Such
counsel may also state that, insofar as such opinion involves factual matters,
they have relied, to the extent they deem proper, upon certificates of officers
of the Company and its Subsidiaries and certificates of public officials.
(c) Opinion of Counsel for Underwriters. At each Closing Time, the
Underwriters shall have received the favorable opinion, dated as of the
applicable Closing Time, of Xxxxx & Xxxxxxx L.L.P., counsel for the
Underwriters, together with signed or reproduced copies of such letter for each
of the other Underwriters, with respect to the matters set forth in (1), (6),
the first two sentences (excluding the last clause of the second sentence, in
each case), of (7) and (8), (9) excluding the last sentence, (10) to (12), (13)
excluding the last clause of the second sentence, (14), as applicable, (15)
(solely as to the information in the Prospectus under "Description of
Underwritten Securities" and "Description of the Underlying Securities," if any,
or any caption purporting to describe any such Securities), (22), and the
penultimate paragraph of the opinion attached as Exhibit B hereto. In giving
such opinion, such counsel may rely, as to all matters governed by the laws of
jurisdictions other than the law of the District of Columbia and the federal law
of the United States, upon the opinions of counsel satisfactory to Xxxxxxx
Xxxxx.
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Such counsel may also state that, insofar as such opinion involves factual
matters, they have relied, to the extent they deem proper, upon certificates of
officers of the Company and its Subsidiaries and certificates of public
officials.
(d) Officers' Certificate. At each Closing Time, there shall not have
been, since the date of the applicable Terms Agreement or since the respective
dates as of which information is given in the Prospectus, any material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its Subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of business, and
Xxxxxxx Xxxxx shall have received a certificate of the Chairman, President or a
Vice President of the Company and of the chief financial officer or chief
accounting officer of the Company, dated as of the applicable Closing Time, to
the effect that (i) there has been no such material adverse change, (ii) the
representations and warranties in Section 1 are true and correct with the same
force and effect as though expressly made at and as of the applicable Closing
Time, (iii) the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied under this Agreement at or
prior to the applicable Closing Time, and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been initiated or, to the knowledge of such officers,
threatened by the Commission.
(e) Accountant's Comfort Letter. At the time of the execution of the
applicable Terms Agreement, the Underwriters shall have received from Ernst &
Young L.L.P. a letter dated such date, in form and substance satisfactory to the
Underwriters, containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in the
Registration Statement and the Prospectus.
(f) Bring-down Comfort Letter. At each Closing Time, the Underwriters
shall have received from Ernst & Young LLP a letter, dated as of the applicable
Closing Time, to the effect that they reaffirmed the statements made in the
letter furnished pursuant to subsection (e) of this Section 5, except that the
specified date referred to shall be a date not more than three business days
prior to the applicable Closing Time.
(g) Ratings. At each Closing Time and at any relevant Date of Delivery,
the Underwritten Securities shall have the rating accorded by any "nationally
recognized statistical rating organization," as defined by the Commission for
purposes of Rule 436(g)(2) of the 1933 Act Regulations, if and as specified in
the applicable Terms Agreement, and the Company shall have delivered to Xxxxxxx
Xxxxx a letter, dated as of such date, from each such rating organization, or
other evidence satisfactory to Xxxxxxx Xxxxx, confirming that the Underwritten
Securities have such ratings. Since the time of execution of the applicable
Terms Agreement, there shall not have occurred a downgrading in the rating
assigned to the Underwritten Securities or any of the Company's other securities
by any such rating organization, and no such rating organization shall have
publicly announced that it has under surveillance or review, with possible
negative implications, its rating of the Underwritten Securities or any of the
Company's other securities.
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(h) Approval of Listing. At Closing Time, the Underwritten Securities
shall have been approved for listing, subject only to official notice of
issuance, if and as specified in the applicable Terms Agreement.
(i) No Objection. If the Registration Statement of an offering of
Underwritten Securities has been filed with the NASD for review, the NASD shall
not have raised any objection with respect to the fairness and reasonableness of
the underwriting terms and arrangements.
(j) Lock-up Agreements. On the date of the applicable Terms Agreement,
Xxxxxxx Xxxxx shall have received, in form and substance satisfactory to it,
each lock-up agreement, if any, specified in such Terms Agreement as being
required to be delivered by the persons listed therein.
(k) Over-Allotment Option. If the event that the Underwriters are
granted an over-allotment option by the Company in the applicable Terms
Agreement and the Underwriters exercise their option to purchase all or any
portion of the Option Underwritten Securities, the representations and
warranties of the Company contained herein and the statements in any
certificates furnished by the Company or any of its Subsidiaries hereunder shall
be true and correct as of each Date of Delivery, and, at the relevant Date of
Delivery, the Underwriters shall have received:
(1) A certificate, dated such Date of Delivery, of the
Chairman, President or a Vice President of the Company and the chief
financial officer or chief accounting officer of the Company,
confirming that the certificate delivered at the Closing Time pursuant
to Section 5(d) hereof remains true and correct as of such Date of
Delivery.
(2) The favorable opinion of Xxxxxx Xxxxxxx Xxxxxx & Xxxxx, A
Professional Limited Liability Company, Xxxxx & Wood, LLP and Glass,
XxXxxxxxxx, Xxxxxxxx & Xxxxxxx, LLP counsel for the Company, in form
and substance satisfactory to counsel for the Underwriters, dated such
Date of Delivery, relating to the Option Underwritten Securities and
otherwise to the same effect as the Opinion required by Section 5(b)
hereof.
(3) The favorable Opinion of Xxxxx & Xxxxxxx L.L.P., counsel
for the Underwriters, dated such Date of Delivery, relating to the
Option Underwritten Securities and otherwise to the same effect as the
opinion required by Section 5(c) hereof.
(4) A letter from Ernst & Young LLP., in form and substance
satisfactory to the Underwriters and dated such Date of Delivery,
substantially in the same form and substance as the letter furnished to
the Underwriters pursuant to Section 5(f) hereof, except that the
"specified date" on the letter furnished pursuant to this paragraph
shall be a date not more than three business days prior to such Date of
Delivery.
(l) Additional Documents. At each Closing Time and at each Date of
Delivery, counsel for the Underwriters shall have been furnished with such
documents and opinions as they
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may require for the purpose of enabling them to
pass upon the issuance and sale of the Underwritten Securities as herein
contemplated, or in order to evidence the accuracy of any of the representations
or warranties, or the fulfillment of any of the conditions, herein contained;
and all proceedings taken by the Company in connection with the issuance and
sale of the Underwritten Securities as herein contemplated shall be satisfactory
in form and substance to the Underwriters and counsel for the Underwriters.
(m) Termination of Underwriting Agreement. If any condition specified
in this Section 5 shall not have been fulfilled when and as required to be
fulfilled, the applicable Terms Agreement (or, with respect to the Underwriters'
exercise of any applicable over-allotment option for the purchase of Option
Underwritten Securities on a Date of Delivery after the Closing Time, the
obligations of the Underwriters to purchase the Option Underwritten Securities
on such Date of Delivery) may be terminated by Xxxxxxx Xxxxx by notice to the
Company at any time at or prior to the Closing Time (or such Date of Delivery,
as applicable), and such termination shall be without liability of any party to
any other party except as provided in Section 4 and except that Sections 1, 6,7
and 8 shall survive any such termination and remain in full force and effect.
SECTION 6. INDEMNIFICATION
(a) Indemnification of Underwriters. The Company agrees to indemnify
and hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act as follows:
(1) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including
information included in a prospectus or term sheet, as the case may be,
that was omitted from the Registration Statement at the time it become
effective but that is deemed to be part of such Registration Statement
at the time it became effective pursuant to paragraph (b) of Rule 430A
("Rule 430 Information") or pursuant to paragraph (d) of Rule 434
("Rule 434 Information") or deemed to be a part thereof, if applicable,
or the omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the statements
therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact included in any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto),
or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(2) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided
that (subject to Section 6(d) below) any such settlement is effected
with the written consent of the Company; and
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(3) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by Xxxxxxx
Xxxxx), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under (1) or (2) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through Xxxxxxx Xxxxx expressly for use in the Registration
Statement (or any amendment thereto), deemed to be a part thereof, if
applicable, or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto) including the Rule 430A Information and the Rule 434
Information deemed to be a part thereof, if applicable, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto).
(b) Indemnification of Company, Directors and Officers. Each
Underwriter severally agrees to indemnify and hold harmless the Company, its
directors, each of its officers who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a)
of this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto), including the Rule 430A Information and
the Rule 434 Information deemed to be a part thereof, if applicable, or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company by such Underwriter through Xxxxxxx Xxxxx expressly for use in
the Registration Statement (or any amendment thereto) or such preliminary
prospectus or the Prospectus (or any amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by Xxxxxxx Xxxxx, and, in
the case of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any
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one action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances. No indemnifying
party shall, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
SECTION 7. CONTRIBUTION
If the indemnification provided for in Section 6 hereof is for any
reason unavailable to or insufficient to hold harmless an indemnified party
in respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company, on the one hand, and the
Underwriters, on the other hand, from the offering of the Underwritten
Securities pursuant to the applicable Terms Agreement or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company, on the one hand, and of
the Underwriters, on the other hand, in connection with the statements or
omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company, on the one hand, and
the Underwriters, on the other hand, in connection with the offering of the
Underwritten Securities pursuant to the applicable Terms Agreement shall be
deemed to be in the same respective proportions as the total net proceeds from
the offering of such Underwritten Securities (before deducting expenses)
received by the Company and the total underwriting discount received by the
Underwriters (in each case as set forth on the cover of the Prospectus, or if
Rule 434 is used,
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the corresponding location on the Term Sheet) bear to the aggregate initial
public offering price of such Underwritten Securities as set forth on such cover
or in such Term Sheet.
The relative fault of the Company, on the one hand, and the
Underwriters, on the other hand, shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 7 were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this Section 7. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 7 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Underwritten Securities underwritten by it
and distributed to the public were offered to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 0000 Xxx) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act shall have the same rights to contribution as the Company. The
Underwriters' respective obligations to contribute pursuant to this Section 7
are several in proportion to the number or aggregate principal amount, as the
case may be, of Initial Underwritten Securities set forth opposite their
respective names in the applicable Terms Agreement, and not joint.
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SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY
All representations, warranties and agreements contained in this
Underwriting Agreement or the applicable Terms Agreement or in certificates
of officers of the Company submitted pursuant hereto or thereto shall remain
operative and in full force and effect, regardless of any investigation made by
or on behalf of any Underwriter or controlling person, or by or on behalf of the
Company or controlling person, and shall survive delivery of and payment for the
Underwritten Securities.
SECTION 9. TERMINATION
(a) Underwriting Agreement. This Underwriting Agreement (excluding the
applicable Terms Agreement) may be terminated for any reason at any time by the
Company or by Xxxxxxx Xxxxx upon the giving of 30 days' prior written notice of
such termination to the other party hereto.
(b) Terms Agreement. Xxxxxxx Xxxxx may terminate the applicable Terms
Agreement, by notice to the Company, at any time at or prior to the applicable
Closing Time or any relevant Date of Delivery, if (i) there has been, since the
time of execution of such Terms Agreement or since the respective dates as of
which information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its Subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii)
there has occurred any material adverse change in the financial markets in the
United States or, if the Underwritten Securities or any related Underlying
Securities include Debt Securities denominated or payable in, or indexed to, one
or more foreign or composite currencies, in the international financial markets,
or any outbreak of hostilities or escalation thereof or other calamity or crisis
or any change or development involving a prospective change in national or
international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of the Xxxxxxx Xxxxx,
impracticable to market the Underwritten Securities or to enforce contracts for
the sale of the Underwritten Securities, or (iii) trading in any securities of
the Company has been suspended or limited by the Commission or the New York
Stock Exchange or, if trading generally on the New York Stock Exchange or the
American Stock Exchange or in the Nasdaq National Market has been suspended or
limited, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices have been required, by either of said exchanges or by such
market or by order of the Commission, the NASD or any other governmental
authority, or (iv) a banking moratorium has been declared by either Federal or
New York authorities or, if the Underwritten Securities or any related
Underlying Securities include Debt Securities denominated or payable in, or
indexed to, one or more foreign or composite currencies, by the relevant
authorities in the related foreign country or countries.
(c) Liabilities. If this Underwriting Agreement or the applicable Terms
Agreement is terminated pursuant to this Section 9, such termination shall be
without liability of any party to
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any other party except as provided in Section 4 hereof, and provided further
that Sections 1, 6, 7 and 8 shall survive such termination and remain in full
force and effect.
SECTION 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS
If one or more of the Underwriters shall fail at the
applicable Closing Time or the relevant Date of Delivery, as the case may be,
to purchase the Underwritten Securities which it or they are obligated to
purchase under the applicable Terms Agreement (the "Defaulted Securities"),
then Xxxxxxx Xxxxx shall have the right, within 24 hours thereafter, to make
arrangements for one or more of the non-defaulting Underwriters, or any other
underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein set
forth; if, however, Xxxxxxx Xxxxx shall not have completed such arrangements
within such 24-hour period, then:
(a) if the number or aggregate principal amount, as the case
may be, of Defaulted Securities does not exceed 10% of the number or
aggregate principal amount, as the case may be, of Underwritten
Securities to be purchased on such date pursuant to such Terms
Agreement, the non-defaulting Underwriters shall be obligated,
severally and not jointly, to purchase the full amount thereof in the
proportions that their respective underwriting obligations under such
Terms Agreement bear to the underwriting obligations of all
non-defaulting Underwriters, or
(b) if the number or aggregate principal amount, as the case
may be, of Defaulted Securities exceeds 10% of the number or aggregate
principal amount, as the case may be, of Underwritten Securities to be
purchased on such date pursuant to such Terms Agreement, such Terms
Agreement (or, with respect to the Underwriters' exercise of any
applicable over-allotment option for the purchase of Option
Underwritten Securities on a Date of Delivery after the Closing Time,
the obligations of the Underwriters to purchase, and the Company to
sell, such Option Underwritten Securities on such Date of Delivery)
shall terminate without liability on the part of any non-defaulting
Underwriter.
No action taken pursuant to this Section 10 shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in (i)
a termination of the applicable Terms Agreement or (ii) in the case of a Date of
Delivery after the Closing Time, a termination of the obligations of the
Underwriters and the Company with respect to the related Option Underwritten
Securities, as the case may be, either Xxxxxxx Xxxxx or the Company shall have
the right to postpone the applicable Closing Time or the relevant Date of
Delivery, as the case may be, for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or the Prospectus or
in any other documents or arrangements.
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SECTION 11. NOTICES
All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by
any standard form of telecommunication. Notices to the Underwriters shall be
directed to Xxxxxxx Xxxxx at World Financial Center, Xxxxx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000-0000 attention of: Xxxxxx Xxxxxxx, Director, with a copy to Xxxxx &
Xxxxxxx, L.L.P., 000 Xxxxxxxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000-0000,
Attention: J. Xxxxxx Xxxxxxx, Xx., and notices to the Company shall be directed
to it at: JDN Realty Corporation, 0000 Xxxxxxxxx Xxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxx, Attention: J. Xxxxxx Xxxxxxx, with a copy to Xxxxxx Xxxxxxx Xxxxxx &
Xxxxx, A Professional Limited Liability Company, Nashville City Center, 000
Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxx, XX 00000-0000, Attention: E. Xxxxxx
Xxxxxxxx.
SECTION 12. PARTIES
This Underwriting Agreement and the applicable Terms Agreement
shall each inure to the benefit of and be binding upon the Company, Xxxxxxx
Xxxxx, and, upon execution of such Terms Agreement, any other Underwriters and
their respective successors. Nothing expressed or mentioned in this Underwriting
Agreement or such Terms Agreement is intended or shall be construed to give any
person, firm or corporation, other than the Underwriters and the Company and
their respective successors and the controlling persons and officers and
directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Underwriting Agreement or such Terms Agreement or any provision
herein or therein contained. This Underwriting Agreement and such Terms
Agreement and all conditions and provisions hereof and thereof are intended to
be for the sole and exclusive benefit of the parties hereto and thereto and
their respective successors, and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Underwritten Securities from
any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 13. GOVERNING LAW AND TIME
THIS UNDERWRITING AGREEMENT AND ANY APPLICABLE TERMS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY
TIME.
SECTION 14. EFFECT OF HEADINGS
The Article and Section headings herein are for convenience only
and shall not affect the construction hereof.
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SECTION 15. COUNTERPARTS
This Agreement may be executed in one or more counterparts, and by
different parties hereto in separate counterparts, each of which when so
executed shall be deemed an original, but all of which together shall constitute
one and the same Agreement.
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If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Company a counterpart hereof,
whereupon this Underwriting Agreement, along with all counterparts, will become
a binding agreement between Xxxxxxx Xxxxx and the Company in accordance with its
terms.
Very truly yours,
JDN Realty Corporation
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chief Financial Officer
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CONFIRMED AND ACCEPTED,
as of the date first
above written:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: /s/ Xxxxxx Xxxxxxx
----------------------------------
Authorized Signatory
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Exhibit B
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(1) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Maryland.
(2) The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in or
incorporated by reference into the Prospectus and to enter into and perform its
obligations under, or as contemplated under, the Underwriting Agreement and the
applicable Terms Agreement.
(3) The Company is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to so qualify or
be in good standing would not result in a Material Adverse Effect.
(4) Each Subsidiary has been duly incorporated or formed and is validly
existing as a corporation or limited partnership in good standing under the laws
of the jurisdiction of its incorporation or formation, has corporate power and
authority to own, lease and operate its properties and to conduct its business
as described in or incorporated by reference into the Prospectus and is duly
qualified as a foreign corporation or limited partnership to transact business
and is in good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify or be in good
standing would not result in a Material Adverse Effect. Except as otherwise
stated in the Registration Statement and the Prospectus, all of the issued and
outstanding equity securities of each Subsidiary have been duly authorized and
is validly issued, fully paid and non-assessable and, except for JDN Development
(the outstanding voting common stock of which is owned 99% by J. Xxxxxx Xxxxxxx
and 1% by the Company, and the outstanding non-voting common stock of which is
owned 100% by the Company), to the best of our knowledge, is owned by the
Company, directly or through Subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity. None of the
outstanding equity securities of any Subsidiary were issued in violation of
preemptive or other similar rights of any securityholder of such Subsidiary.
(5) The authorized, issued and outstanding shares of capital stock of
the Company was as set forth as of the date indicated under the caption
"Capitalization" (except for subsequent issuances thereof, if any, contemplated
under the Underwriting Agreement, pursuant to reservations, agreements or
employee benefit plans, stock option or purchase plans or dividend reinvestment
plans referred to in the Prospectus or pursuant to the exercise of convertible
securities or options referred to in the Prospectus). Such shares of capital
stock have been duly authorized and validly issued by the Company and are fully
paid and non-assessable, and none of
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such shares of capital stock was issued in violation of preemptive or other
similar rights of any securityholder of the Company.
(6) The Underwriting Agreement and the applicable Terms Agreement have
been duly authorized, executed and delivered by the Company.
(7) The applicable Underwritten Securities, if such Underwritten
Securities are Common Stock, have been duly authorized by the Company for
issuance and sale pursuant to the Underwriting Agreement and the applicable
Terms Agreement. The Underwritten Securities, when issued and delivered by the
Company pursuant to the Underwriting Agreement and such Terms Agreement against
payment of the consideration therefor specified in such Terms Agreement, will be
validly issued, fully paid and non-assessable and will not be subject to
preemptive or other similar rights of any securityholder of the Company. No
holder of the Underwritten Securities is or will be subject to personal
liability by reason of being such a holder. The form of certificate used to
evidence the Underwritten Securities is in due and proper form and complies with
the applicable statutory requirements, with any applicable requirements of the
charter or by-laws of the Company and with the requirements of the New York
Stock Exchange.
(8) The applicable Underwritten Securities, if such Underwritten
Securities are Preferred Stock, have been duly authorized by the Company for
issuance and sale pursuant to the Underwriting Agreement and the applicable
Terms Agreement. The applicable Preferred Stock, when issued and delivered by
the Company pursuant to the Underwriting Agreement and such Terms Agreement
against payment of the consideration specified in such Terms Agreement, will be
validly issued, fully paid and non-assessable and will not be subject to
preemptive or other similar rights of any securityholder of the Company. No
holder of such Preferred Stock is or will be subject to personal liability by
reason of being such a holder. The form of certificate used to evidence the
Preferred Stock is in due and proper form and complies with the applicable
statutory requirements, with any applicable requirements of the charter or
by-laws of the Company and with the requirements of the New York Stock Exchange.
The applicable Articles Supplementary is in full force and effect.
(9) The applicable Underwritten Securities, if such Underwritten
Securities include Senior Debt Securities and/or Subordinated Debt Securities,
have been duly authorized by the Company for issuance and sale pursuant to the
Underwriting Agreement and the applicable Terms Agreement. The Underwritten
Securities, when issued and authenticated in the manner provided for in the
applicable Indenture and delivered against payment of the consideration therefor
specified in such Terms Agreement, will constitute valid and legally binding
obligations of the Company, enforceable against the Company in accordance with
their terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally or by general equitable principles, and
except further as enforcement thereof may be limited by (A) requirements that a
claim with respect to any Debt Securities denominated other than in U.S. dollars
(or a foreign or composite currency judgment in respect of such claim) be
converted into U.S. dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or (B) governmental
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authority to limit, delay or prohibit the making of payments outside the United
States. The Underwritten Securities are in the form contemplated by, and each
registered holder thereof is entitled to the benefits of, the applicable
Indenture.
(10) The applicable Indenture, if such Underwritten Securities include
Senior Debt Securities and/or Subordinated Debt Securities or if Preferred Stock
is convertible into Debt Securities, has been duly authorized, executed and
delivered by the Company and (assuming due authorization, execution and delivery
thereof by the applicable Trustee) constitutes a valid and legally binding
agreement of the Company, enforceable against the Company in accordance with its
terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally or by general equitable principles.
(11) The applicable Underwritten Securities, if such Underwritten
Securities include Warrants, have been duly authorized by the Company for
issuance and sale pursuant to the Underwriting Agreement and the applicable
Terms Agreement. The Underwritten Securities, when issued and authenticated in
the manner provided for in the applicable Warrant Agreement and delivered
against payment of the consideration therefor specified in such Terms Agreement,
will constitute valid and legally binding obligations of the Company, entitled
to the benefits provided by such Warrant Agreement and enforceable against the
Company in accordance with their terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting creditors' rights generally or by general
equitable principles.
(12) The applicable Warrant Agreement, if such Underwritten Securities
includes Warrants, has been duly authorized, executed and delivered by the
Company and (assuming due authorization, execution and delivery thereof by the
applicable Warrant Agent) constitutes a valid and legally binding agreement of
the Company, enforceable against the Company in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
creditors' rights generally or by general equitable principles.
(13) The applicable Underlying Securities, if such Underlying
Securities include Common Stock or Preferred Stock, have been duly authorized
and reserved for issuance by the Company upon exercise of the Warrants or upon
conversion of the related Preferred Stock, Senior Debt Securities or
Subordinated Debt Securities. The Underlying Securities, when issued upon such
exercise or conversion, will be validly issued, fully paid and non-assessable
and will not be subject to preemptive or other similar rights of any
securityholder of the Company. No holder of the Underlying Securities is or will
be subject to personal liability by reason of being such a holder. The
Underlying Securities have been duly authorized for issuance by the Company upon
exercise of the Warrants or upon conversion of the related Preferred Stock. The
Underlying Securities, when issued and authenticated in the manner provided for
in the applicable Indenture and delivered in accordance with the terms of the
related Preferred Stock, will constitute valid and legally binding obligations
of the Company, enforceable against the Company in accordance with their terms,
except as the enforcement thereof may be limited by
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bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting creditors' rights generally or by general equitable
principles, and except further as enforcement thereof may be limited by (A)
requirements that a claim with respect to any Debt Securities denominated other
than in U.S. dollars (or a foreign or composite currency judgment in respect of
such claim) be converted into U.S. dollars at a rate of exchange prevailing on a
date determined pursuant to applicable law or (B) governmental authority to
limit, delay or prohibit the making of payments outside the United States.
(14) The Underwritten Securities being sold pursuant to the applicable
Terms Agreement and/or each applicable Indenture or Warrant Agreement conform,
and any Underlying Securities, when issued and delivered in accordance with the
terms of the related Underwritten Securities, will conform, in all material
respects to the statements relating thereto contained in the Prospectus and are
in substantially the form filed or incorporated by reference, as the case may
be, as an exhibit to the Registration Statement.
(15) The information in the Prospectus under "Description of
Underwritten Securities" and "Description of Underlying Securities," if any, or
any caption purporting to describe any such Securities, whether in the
Prospectus or the Prospectus Supplement, under the heading "Certain Federal
Income Tax Considerations" or similar heading if any, in the Prospectus
Supplement and in the Registration Statement under Item 15, to the extent that
it constitutes matters of law, summaries of legal matters, the Company's charter
and bylaws, legal proceedings, or legal conclusions, has been reviewed by us and
is correct in all material respects.
(16) To the best of our knowledge, neither the Company nor any of its
Subsidiaries is in violation of its charter or by-laws and no default by the
Company or any of its Subsidiaries exists in the due performance or observance
of any material obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other agreement or
instrument that is described or referred to in the Registration Statement or the
Prospectus or filed or incorporated by reference as an exhibit to the
Registration Statement.
(17) The execution, delivery and performance of the Underwriting
Agreement, the applicable Terms Agreement and each applicable Indenture or
Warrant Agreement and any other agreement or instrument entered into or issued
or to be entered into or issued by the Company in connection with the
transactions contemplated in the Registration Statement and the Prospectus and
the consummation of the transactions contemplated in the Underwriting Agreement
and such Terms Agreement and in the Registration Statement and the Prospectus
(including the issuance and sale of the Underwritten Securities and the use of
the proceeds from the sale of the Underwritten Securities as described under the
caption "Use of Proceeds") and compliance by the Company with its obligations
thereunder do not and will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach of, or default or
Repayment Event under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to, any contract, indenture, mortgage, deed of trust, loan
or credit agreement, note, lease or any other agreement or instrument, known to
us, to which the Company or any of its subsidiaries is a party or by which it or
any of them may be bound, or to which any of the assets, properties or
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operations of the Company or any of its subsidiaries is subject, except for such
conflicts, breaches, defaults, events or liens, charges or encumbrances that
would not result in a Material Adverse Effect, nor will such action result in
any violation of the provisions of the charter or by-laws of the Company or any
of its subsidiaries, nor will any such action result in any violation of any
applicable law, statute, rule, regulation, judgment, order, writ or decree,
known to us, of any government, government instrumentality or court, domestic or
foreign, having jurisdiction over the Company or any of its subsidiaries or any
of their assets, properties or operations except for such violations that would
not result in a Material Adverse Effect.
(18) To the best of our knowledge, there is not pending or threatened
any action, suit, proceeding, inquiry or investigation to which the Company or
any of its Subsidiaries thereof is a party or to which the assets, properties or
operations of the Company or any of its Subsidiaries thereof is subject, before
or by any court or governmental agency or body, domestic or foreign, which might
reasonably be expected to result in a Material Adverse Effect or which might
reasonably be expected to materially and adversely affect the assets, properties
or operations thereof or the consummation of the transactions contemplated under
the Underwriting Agreement, the applicable Terms Agreement or any applicable
Indenture or Warrant Agreement or the performance by the Company of its
obligations thereunder.
(19) All descriptions in the Registration Statement of contracts and
other documents to which the Company or its Subsidiaries are a party are
accurate in all material respects. To the best of our knowledge, there are no
franchises, contracts, indentures, mortgages, loan agreements, notes, leases or
other instruments required to be described or referred to in the Registration
Statement or to be filed as exhibits thereto other than those described or
referred to therein or filed or incorporated by reference as exhibits thereto,
and the descriptions thereof or references thereto are correct in all material
respects.
(20) To the best of our knowledge, there are no statutes or regulations
that are required to be described in the Prospectus that are not described as
required.
(21) The Registration Statement has been declared effective under the
1933 Act. Any required filing of the Prospectus pursuant to Rule 424(b) has been
made in the manner and within the time period required by Rule 424(b). To the
best of our knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued under the 1933 Act and no proceedings for
that purpose have been initiated or are pending or threatened by the Commission.
(22) The Registration Statement and the Prospectus, excluding the
documents incorporated by reference therein, and each amendment or supplement to
the Registration Statement and Prospectus, excluding the documents incorporated
by reference therein, as of their respective effective or issue dates (other
than the financial statements and supporting schedules included therein or
omitted therefrom and each Trustee's Statement of Eligibility on Form T-1 (the
"Form T-1s"), as to which we express no opinion) complied as to form in all
material respects with the requirements of the 1933 Act and the 1933 Act
Regulations.
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(23) The documents incorporated by reference in the Prospectus (other
than the financial statements and supporting schedules therein or omitted
therefrom, as to which we express no opinion), when they became effective or
were filed with the Commission, as the case may be, complied as to form in all
material respects with the requirements of the 1933 Act or the 1934 Act, as
applicable, and the rules and regulations of the Commission thereunder.
(24) No filing with, or authorization, approval, consent, license,
order registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign, is necessary or required for the
performance by the Company of its obligations under the Underwriting Agreement
or the applicable Terms Agreement or in connection with the transactions
contemplated under the Underwriting Agreement, such Terms Agreement or any
applicable Indenture or Warrant Agreement, other than under the 1933 Act, the
1933 Act Regulations, the 1939 Act and the 1939 Act Regulations, which have been
obtained (or as may be required under state securities or blue sky laws or by
the NASD, as to which we express no opinion).
(25) The applicable Underwritten Underlying Securities, if such
Underwritten Underlying Securities include Senior Debt Securities and/or
Subordinated Debt Securities, upon issuance, will be excluded or exempted under,
or beyond the purview of, the Commodity Exchange Act, as amended (the "Commodity
Exchange Act"), and the rules and regulations of the Commodity Futures Trading
Commission under the Commodity Exchange Act (the "Commodity Exchange Act
Regulations").
(26) The Company is not an "investment company" within the meaning of
the Investment Company Act of 1940, as amended (the "1940 Act").
(27) Based on certain customary assumptions and representations
(acceptable to counsel for the Underwriter in their reasonable discretion)
relating to applicable asset composition, source of income, shareholder
diversification distribution, recordkeeping tests and other requirements of the
Code necessary for the Company to qualify as a real estate investment trust
("REIT"), the Company was organized and has operated in conformity with the
requirements for qualification and taxation as a REIT under Sections 856 through
860 of the Code for each of the taxable years ended December 31, 1994, December
31, 1995 and December 31, 1996, and the Company's current organization and
method of operations will enable the Company to continue to qualify as a REIT
under the Code. The discussion incorporated by reference into the Registration
Statement under the caption "Federal Income Tax Considerations" fairly
summarizes the federal income tax considerations that are likely to be material
to a holder of Underwritten Securities and, to the extent that it constitutes
matters of law or legal conclusions, has been reviewed by such counsel, is
correct and presents fairly the information required to be disclosed therein.
Nothing has come to our attention that would lead us to believe that
the Registration Statement or any post-effective amendment thereto (except for
financial statements and schedules and other financial data included therein or
omitted therefrom and for the Form T-1s,
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as to which we make no statement), at the time the Registration Statement or any
post-effective amendment thereto (including the filing of the Company's Annual
Report on Form 10-K with the Commission) became effective or at the date of the
applicable Terms Agreement, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Prospectus or any
amendment or supplement thereto (except for financial statements and schedules
and other financial data included therein or omitted therefrom, as to which we
make no statement), at the time the Prospectus was issued, at the time any such
amended or supplemented prospectus was issued or at the applicable Closing Time,
included or includes an untrue statement of a material fact or omitted or omits
to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may rely as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public officials. Such
opinion shall not state that it is to be governed or qualified by, or that it is
otherwise subject to, any treatise, written policy or other document relating to
legal opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of Business Law (1991).
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